Behind Closed E-Mail

Published: April 1, 1999

(Page 2 of 3)

Sunshine laws stem from the first open meetings law, which was passed in Pennsylvania in the 1880's, said Tim Delaney, the Chief Deputy Attorney General of Arizona. In the aftermath of the Watergate break-in in the 1970's, ''all the public attention was focused on trying to get government to behave,'' he said. Both meetings and records became more accessible. During the Iran-contra scandal in the 1980's, E-mail recovered between Lieut. Col. Oliver L. North and Adm. John M. Poindexter, then the national security adviser, yielded information important to the case.

According to most sunshine laws, a majority of a panel is not allowed to meet to discuss policy unless the public is notified. In Scottsdale, Ariz., where the school board has been found by the Attorney General to have committed more than 40 violations of open meetings laws, one board member has complained to the State Attorney General's Office about an E-mail message the board president wrote that summarized the board's closed-session discussions about the superintendent's midyear review, according to The Arizona Republic.

That board member, Kristy Ryan, has also criticized the president's request for comment by phone or E-mail on a draft of the job review for the superintendent, according to the newspaper.

Mr. Delaney, of the Attorney General's Office, said the Scottsdale board's ethics monitor had been asked to review the E-mail issue to see if the open meetings law had been violated. ''We're not quite sure if there was a violation,'' said Mr. Delaney, who is chairman of the state's Open Meeting Law Enforcement Team. (It is called Omlet -- ''we break a few eggs,'' he said.)

As chairman of that panel, Mr. Delaney trains public officials about the use of E-mail. ''People say it's like a conference call, and I say that's also no good, and the same with faxes,'' he said. ''I don't care if you're doing it by pony express, if all of you are reaching consensus where the public can't see it, it's wrong.''

It is not only E-mail that raises open-meetings questions. In 1995, for example, a school board president in Jefferson County, Colo., left a voice-mail message for other school board members about his planned testimony against a state school-governance bill. Two other board members accused him of violating the state open-meetings law. They were supported by Troy Eid, executive director of the Institute for Information, Law and Policy at the Center for the New West, who wrote an op-ed article in 1995 in The Rocky Mountain News that said: ''The Jeffco controversy shows how information technologies can be abused to short-circuit the public's ability to monitor and influence government decision-making. The solution is not to abandon these technologies, but to insure that the law keeps pace with the people who depend on them.'' But no formal complaint was ever filed.

Also in 1995, the chairman of the board of regents of the Nevada state university system sent a fax to all but one of the other regents, seeking their approval to issue a press release criticizing the regent who was left out, who had questioned the hiring of a new president for the University of Nevada at Las Vegas. The State Attorney General's Office filed a successful lawsuit that said such communication violated the law on open public meetings.

Once an official's E-mail is available to the public, voluntarily or through the filing of a Freedom of Information Act request, it can present an accurate portrayal of what a politician was thinking at a certain time -- more accurate, in fact, than most letters on paper, said Patrick J. Carome, a lawyer in Washington who specializes in open-government and Internet law.

''People say things with less care and formality and thought in E-mail than in a formal document, and therefore what we're finding is we're getting something akin to the real thought process of people, as freely stated as in a phone conversation,'' said Mr. Carome, who worked for the House Select Committee during deliberations over access to E-mail in the Iran-contra affair. ''As a result of the new technology, we have much more after-the-fact hard evidence of what was said or done.''

Of course, it is inevitable that some legislative and administrative deals will be cut outside public view, whether behind closed doors, on the phone or behind the lid of a laptop.

''I can predict sometime this year two county commissioners will have a private conversation to which there will never be a witness, and they will make a decision,'' said Gary Lowe, executive director of the Washington State Association of Counties. ''It's human nature. There will never be an end to it.''

And in some ways, that is not a terrible thing, he said. Referring to three-member commissions, he said, ''I would hate to see the day come when these three have to read the newspaper to even know what the other two are thinking.''

While E-mail has been determined to be a public record on the Federal level, the issue is a perennial question on the local level. Further, as new public officials take office and more people turn to E-mail and discover its convenience and speed, practices change and public servants need up-to-date training.